Dias

MEMORANDUM ***

At issue in this appeal is an order of the district court awarding attorneys’ fees to Appellees. Mason v. Nevada, No. CV-05-00368-RLH/LRL (D.Nev. Sept. 21, 2005). The essential facts of this ease are stated in a related appeal, Dias v. Elique, No. 05-16440 (9th Cir. May -, 2008), issued today. The district court had jurisdiction under 28 U.S.C. § 1343 (2000) and 28 U.S.C. § 1367 (2000). We have jurisdiction to review the final order of the district court granting attorneys’ fees under 28 U.S.C. § 1291 . An award of attorneys’ fees under 42 U.S.C. § 1988 is reviewed for abuse of discretion. Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003).

A prevailing defendant in an action under 42 U.S.C. § 1983 may be awarded attorneys’ fees if the suit in question was “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 , 98 S.Ct. 694 , 54 *596 L.Ed.2d 648 (1978). Although we find that Appellants’ malicious prosecution claim was precluded by factual determinations issued by Justice Reed in a prior proceeding, the preclusive effect of the prior determination was unclear at the time Appellants’ claims were filed. In…